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Case 1:21-cv-09590 Document 1 Filed 11/18/21 Page 1 of 12
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`MILLENNIAL PLASTIC SURGERY PLLC
`
`
` v.
`
`MEGHAN JAMES
`
`
`
`
`
`Plaintiff,
`
`Defendant.
`
`
`
`
`Civil Action No.: 21-cv-9590
`
`
`COMPLAINT
`
`Plaintiff, Millennial Plastic Surgery PLLC (“Plaintiff” or “Millennial”), by and through its
`
`undersigned attorneys, Garson, Ségal, Steinmetz, Fladgate LLP, brings its Complaint against
`
`Defendant, Meghan James (“Defendant” or “James”), and respectfully alleges as follows:
`
`THE PARTIES
`
`1.
`
`Plaintiff, Millennial Plastic Surgery PLLC is a New York professional limited
`
`liability corporation incorporated under the laws of the State of New York, located in New York
`
`County, New York. All Members of the PLLC are New York citizens.
`
`2.
`
`Upon information and belief, Defendant, Meghan James is an individual who is a
`
`citizen and resident of the State of California.
`
`JURISDICTION AND VENUE
`
`3.
`
`This Court has jurisdiction over this action pursuant to 28 U.S.C. §1332(a)(3) in
`
`that the action is between a citizen of this state and a citizen or subject of a foreign state and the
`
`matter in controversy exceeds the sum or value of $75,000.00, exclusive of interest and costs.
`
`4.
`
`Venue is proper in this judicial district pursuant to 27 U.S.C. §1391(a), in that it is
`
`a district in which a substantial part of the events or omissions giving rise to the claims occurred,
`
`or a substantial part of the property that is the subject of this action is situated.
`
`
`
`1
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`

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`Case 1:21-cv-09590 Document 1 Filed 11/18/21 Page 2 of 12
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`5.
`
`Further, the agreement from which this dispute arises designates, and Defendant
`
`expressly agreed, that it is governed and constructed in accordance with the laws of the State of
`
`New York.
`
`FACTS COMMON TO ALL CLAIMS
`
`THE AGREEMENTS
`
`6.
`
`Defendant James is a social media influencer who partners with brands and
`
`companies to promote their goods and services by posting on various social media and digital
`
`media accounts.
`
`7.
`
`James’ Instagram account, for example, has over 1.2 million followers, and her
`
`posts include promotional content for skin care products, clothing brands, music, liquor and more.
`
`8.
`
`On or about October 15, 2021, Millennial and James entered into a sequence of
`
`agreements, whereby James would promote Millennial’s services in exchange for two cosmetic
`
`procedures.
`
`9.
`
`The procedures to be performed were outlined in a Cosmetic Surgery Agreement,
`
`which stated that Millennial would perform a Liposuction 360 and liposuction of the arms, as well
`
`as a Biopolymer Removal Procedure.
`
`10.
`
`The Cosmetic Surgery Agreement states that the procedures had a value of
`
`$22,000.00. A true and correct copy of the Cosmetic Surgery Agreement is attached hereto as
`
`Exhibit A.
`
`11.
`
`In exchange for the procedures, and in lieu of monetary payment therefore, James
`
`agreed to a schedule of social media posts outlined in a schedule to an Influencer Agreement,
`
`effective on October 14, 2021. A true and correct copy of the Influencer Agreement is attached
`
`hereto as Exhibit B.
`
`
`
`2
`
`

`

`Case 1:21-cv-09590 Document 1 Filed 11/18/21 Page 3 of 12
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`12.
`
`The detailed schedule outlines that James would first, on October 30, 2021 publish
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`a post on Instagram, as well as an Instagram Story revealing the upcoming surgeries, promoting
`
`Millennial, and telling her followers to “tune in on live surgery.”
`
`13.
`
`Next, on November 1, 2021, James would post a “countdown tool” to her live
`
`surgery on her Instagram story.
`
`14.
`
`Then, the procedures would take place on November 2, 2021, during which
`
`Millennial’s videographer would stream the procedures on Instagram live for James’ 1.2 million
`
`followers. The live stream and subsequent IGTV post of the live stream were clearly outlined in
`
`the content schedule and were an essential element of the contract between the parties, as they
`
`would provide James’ followers with the most insight into Millennial, thus promoting the brand.
`
`15.
`
`16.
`
`James would then post updates once per month for the next year.
`
`In addition to, and in conjunction with, the Cosmetic Surgery Agreement and the
`
`Influencer Agreement, James agreed to and signed non-disparagement and non-disclosure
`
`agreements.
`
`17.
`
`In signing the non-disparagement agreement, James represented and stated “I agree
`
`not to in any way slander or injure the business reputation or goodwill of the [sic] Millennial Plastic
`
`Surgery, including, by way of illustration, through any contact with clients, prospective clients,
`
`vendors, suppliers, reviews, or social media regarding Millennial Plastic Surgery which could
`
`slander or injure the business reputation or goodwill of the Company.” A true and correct copy of
`
`the Non-Disparagement and Non-Disclosure Agreements are attached hereto as Exhibit C.
`
`JAMES’ BREACH OF THE INFLUENCER AGREEMENT
`
`18.
`
`Upon information and belief, prior to the scheduled procedure on November 2,
`
`2021, James’ Instagram account became banned from live streaming any content. When
`
`
`
`3
`
`

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`Case 1:21-cv-09590 Document 1 Filed 11/18/21 Page 4 of 12
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`questioned by Millennial, James assured Millennial that they would be able to live stream the
`
`procedures from her account.
`
`19.
`
`Relying on these statements, James was placed under anesthesia in order for
`
`Millennial to perform the procedures, and Dr. David Shokrian began James’ liposuction
`
`procedures.
`
`20. Millennial’s videographer, pursuant to the terms of the agreements between the
`
`parties, attempted to begin streaming the procedures live, but learned that James’ Instagram
`
`account was still banned from livestreaming.
`
`21.
`
`Nonetheless, Dr. Shokrian finished the liposuction procedures, but refused to
`
`perform that Biopolymer Removal, as that procedure was the one the live stream was intended to
`
`promote.
`
`22.
`
`The Influencer Agreement states unequivocally that the “Influencer will be charged
`
`the full amount of surgery if the influencer does not comply with terms.”
`
`23.
`
`James’ ban from live streaming on Instagram, which led to the inability to live
`
`stream the procedure, is a breach of contract, and Millennial is entitled to payment for the
`
`liposuction procedures performed.
`
`24.
`
`Upon waking up from anesthesia, James began threatening Dr. Shokrian and
`
`Millennial for not performing the Biopolymer Removal procedure, despite having not performed
`
`her end of the contract.
`
`JAMES’ BREACH OF THE NON-DISPARAGEMENT AGREEMENT
`
`25.
`
`On November 16, 2021, seemingly not content with having received a free
`
`liposuction procedure worth $15,000.00 despite not streaming live as agreed upon, James took to
`
`Instagram for the sole purpose and with the clear intent to defame and denigrate Millennial Plastic
`
`
`
`4
`
`

`

`Case 1:21-cv-09590 Document 1 Filed 11/18/21 Page 5 of 12
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`Surgery, posting a picture and a video with that caption “@theglamsquadnyc !! Thank you guys
`
`for everything & coming
`
`to
`
`the rescues [sic] after my horrible experience with
`
`@millennialplasticsurgery [emoji] You guys are highly appreciated.” A true and correct screenshot
`
`of the post can be seen in Image 1 below.
`
`Image 1:
`
`
`
`
`
`26.
`
`On November 17, 2021, counsel for Millennial contacted James via a cease and
`
`desist letter demanding that she remove the post, as it violated the non-disparagement agreement
`
`that she knowingly and willingly signed.
`
`27.
`
`Upon receipt, James responded via email stating “Hi, The information has been
`
`forwarded to my attorney.”
`
`
`
`5
`
`

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`Case 1:21-cv-09590 Document 1 Filed 11/18/21 Page 6 of 12
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`28.
`
`29.
`
`As of the time of this filing, the post remains available on Instagram.
`
`This is a clear violation of the non-disparagement agreement, and the blowback
`
`from the post is equally clear.
`
`30.
`
`The post has received over 24,000 likes from James’ followers, and there are over
`
`358 comments.
`
`31.
`
`Among those comments are numerous examples of how this violative post is
`
`damaging Millennial, both in reputation and monetarily.
`
`32.
`
`For example, one follower commented “@_meghanj im glad I saw this comment
`
`cause I saw your post promoting them and I actually called them for a consultation.” See Image 2
`
`below. Based on James’ post, Millennial has lost a patient.
`
`Image 2:
`
`33.
`
`In another example, another follower commented “[girl], I was gonna go to them
`
`as well but someone [sic] about his work seemed off.” See Image 3 below. It is clear that the post
`
`has this individual to not use Millennial for any procedures.
`
`
`
`
`
`
`
`
`
`Image 3:
`
`6
`
`
`
`

`

`Case 1:21-cv-09590 Document 1 Filed 11/18/21 Page 7 of 12
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`34.
`
`Others
`
`simply
`
`attacked Millennial,
`
`stating
`
`“shame
`
`on
`
`you
`
`@millennialplasticsurgery” or encouraged James to “sue @millennialplasticsurgery for not
`
`finishin and for ****ing up.”
`
`35.
`
`Last, Millennial has received multiple messages cancelling upcoming procedures
`
`and demanding refunds of their deposits. See, for example, Image 4 below.
`
`Image 4:
`
`
`
`36.
`
`Also among the comments are replies from James, further slating Millennial and
`
`assuring her followers that she will be posting a negative YouTube video about Millennial, which
`
`would be a further violation of the non-disparagement agreement.
`
`37.
`
`All of this is a result of James’ own false representations and assurances regarding
`
`her ability live stream the procedure.
`
`
`
`7
`
`

`

`Case 1:21-cv-09590 Document 1 Filed 11/18/21 Page 8 of 12
`
`MILLENNIAL’S DAMAGES
`
`38.
`
`As an initial point, the Influencer Agreement is clear that Millennial is entitled to
`
`payment of $15,000.00 for the liposuction services performed, as James did not comply with the
`
`terms of the Agreement.
`
`39. Millennial’s damages for James’ breach of the non-disparagement, however, are
`
`more difficult to quantify, but are significant.
`
`40.
`
`James has 1.2 million followers on Instagram, many of whom would be potential
`
`patients for similar cosmetic procedures that James has had, and Millennial performs. Procedures
`
`at Millennial range from $15,000.00 to $30,000.00. Therefore, the fallout from this post, even if
`
`only 10 cancelled procedures, will cost Millennial hundreds of thousands of dollars, excluding just
`
`the loss of goodwill on its own.
`
`First Claim for Relief
`(Breach of Contract for Failure to Perform)
`
`Plaintiff re-alleges and incorporates by reference each and every allegation
`
`41.
`
`contained in the prior paragraphs of this Complaint as if fully set forth herein.
`
`42. Millennial and James entered into a valid and enforceable contract, supported by
`
`due consideration on October 15, 2021.
`
`43.
`
`Pursuant to the terms of the contract, Millennial would perform liposuction and
`
`biopolymer removal procedures, valued at $22,000.00, in exchange for James promoting and
`
`marketing Millennial to her over 1.2 million followers through a sequence of content posts.
`
`44.
`
`Critical to the promotion and the contract, James agreed that the procedures would
`
`be streamed live on Instagram, and that the live stream recording would then be posted on IGTV.
`
`
`
`8
`
`

`

`Case 1:21-cv-09590 Document 1 Filed 11/18/21 Page 9 of 12
`
`45.
`
`James represented by virtue of the contract that she was willing and able to stream
`
`the procedure, and verbally reassured Millennial that she would be able to stream it prior to the
`
`procedure.
`
`46. When Millennial’s videographer sought to stream the procedure, Millennial was
`
`unable to do so, as James’ Instagram account was banned from live streaming, seemingly as a
`
`result of past violative posts.
`
`47. When James was informed that the biopolymer procedure did not take place, rather
`
`than seeking to remedy her breach, James leveled threats at Millennial relating to her social media
`
`presence, threats which, as stated herein, she ultimately followed through with.
`
`48.
`
`James’ failure to take the necessary steps to live stream the procedure is a breach
`
`of the Influencer Agreement.
`
`49. Millennial was damaged by James’ breach, in that Millennial provided surgical
`
`procedures without receiving the benefit of the contract between the parties.
`
`50.
`
`The Influencer Agreement states in the event of a failure to comply with the terms
`
`of the agreement, James would be obligated to pay the full price of the procedures.
`
`51.
`
`Therefore, Millennial is entitled to payment of $15,000.00 for the liposuction
`
`procedures performed.
`
`Second Claim for Relief
`(Breach of Contract for Disparagement)
`
`52.
`
`Plaintiff re-alleges and incorporates by reference each and every allegation
`
`contained in the prior paragraphs of this Complaint as if fully set forth herein.
`
`53.
`
`As part of, and as consideration for, the contract between the parties, James “agreed
`
`not to in any way slander or injure the business reputation or goodwill of the [sic] Millennial Plastic
`
`Surgery, including, by way of illustration, through any contact with clients, prospective clients,
`
`
`
`9
`
`

`

`Case 1:21-cv-09590 Document 1 Filed 11/18/21 Page 10 of 12
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`vendors, suppliers, reviews, or social media regarding Millennial Plastic Surgery which could
`
`slander or injure the business reputation or goodwill of the Company.”
`
`54.
`
`On November 16, 2021, James caused a post to be made on her Instagram account
`
`that was intended to injure the business reputation and goodwill of Millennial.
`
`55.
`
`James has over 1.2 million followers on Instagram, many of whom would be
`
`potential patients of Millennial.
`
`56.
`
`The comments on the post reveal multiple instances of potential patients changing
`
`their minds about going to Millennial for their procedures on the basis of James’ post.
`
`57.
`
`James was asked by counsel to remove the post, and thus mitigate the damages that
`
`it is causing, but has refused to do so.
`
`58. Millennial has been damaged both reputationally and monetarily by the post, and
`
`continues to be damaged as long as the post remains available on Instagram.
`
`59.
`
`The extent of the monetary damages from lost patients will be determined at trial,
`
`but is estimate, upon information and belief, to be in excess of $250,000.00 based on the reach of
`
`James’ post, her influence among Millennial’s potential patient pool, and the comments being
`
`made on the post.
`
`60.
`
`The extent of the reputational damage and damage to Millennial’s goodwill is
`
`exceedingly difficult, if not impossible, to quantify.
`
`Third Claim for Relief
`(Defamation Per Se under New York Common Law)
`
`61.
`
`Plaintiff re-alleges and incorporates by reference each and every allegation
`
`contained in the prior paragraphs of this Complaint as if fully set forth herein.
`
`62.
`
`James’ Instagram post is a false statement about Plaintiff’s services, in that the
`
`“horrible experience” referred to was a result of James’ own conduct.
`
`
`
`10
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`

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`Case 1:21-cv-09590 Document 1 Filed 11/18/21 Page 11 of 12
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`63. Millennial did not authorize the publication of the post, and indeed contracted with
`
`James’ against it.
`
`64.
`
`James caused the post to be published with either actual knowledge that it was false
`
`or with a reckless disregard for whether it was false or inaccurate, in that she was aware that she
`
`did not have a bad experience with Millennial, and rather breached her contract, resulting in the
`
`cancellation of her procedure.
`
`65.
`
`James intended for the false statement to reach her 1.2 million followers, thus
`
`harming Millennial’s reputation.
`
`66.
`
`James’ statement is defamation per se, in that such a statement would injure
`
`Millennial in its trade, business, or profession. Further, the statement impugns the basic integrity
`
`or creditworthiness of Millennial’s business by its very nature.
`
`67.
`
`68.
`
`Therefore, injury is conclusively presumed.
`
`Further, even if injury is not presumed, as a result of the publication by Defendant,
`
`Plaintiff has suffered and continues to suffer damage to its business and reputation.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff, Millennial Plastic Surgery PLLC, seeks judgment against
`
`Defendant, Meghan James, as follows:
`
`i.
`
`On the First Claim for Relief, for damages in an amount to be determined at trial,
`
`but not less than $15,000.00;
`
`ii.
`
`On the Second Claim for Relief, for damages in an amount to be determined at trial,
`
`but not less than $250,000.00;
`
`iii.
`
`On the Third Claim for Relief, for damages in an amount to be determined at trial,
`
`but not less than $250,000.00;
`
`
`
`11
`
`

`

`Case 1:21-cv-09590 Document 1 Filed 11/18/21 Page 12 of 12
`
`iv.
`
`On the First and Second Claims for Relief, contractually provided costs and
`
`attorneys’ fees incurred in this litigation; and,
`
`v.
`
`For such other further relief as the Court may deem just, proper, and in the interest
`
`
`
`Garson, Segal,
`Steinmetz, Fladgate LLP
`Attorneys for the Plaintiff
`
`
`
`
`
` Respectfully Submitted,
`
`
`
`
`
`By:
`
`
`
`
`
`
`
`
`
`
`
`
`/s/
`
`Kevin Kehrli (KK1536)
`164 West 25th Street
`Suite 11R
`New York, NY 10001
`Telephone: (212) 380-3623
`Facsimile: (347) 537-4540
`Email: KK@GS2Law.com
`
`of justice.
`
`Dated: Doylestown, Pennsylvania
`
`
`November 18, 2021
`
`
`
`
`
`
`12
`
`

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